In addition to the myriad of continuing changes to Canada's
Temporary Foreign Worker Program (TFWP) made available to the
public, there is a significant amount of unpublished information
'below the surface'. Failure to be aware of what Employment
and Social Development Canada (ESDC) didn't tell you can lead
to devastating effects in the course of seeking to hire a foreign
worker. (ESDC administers the TFWP along with Immigration
Before hiring a foreign worker (with few exceptions), an
employer must seek a Labour Market Impact Assessment (LMIA) to
substantiate why a Canadian is not being hired. The program is
administered by ESDC, but operated by Service Canada. Here are some
crucial, and unpublished, factors that ESDC has indicated are to be
considered when seeking an LMIA:
An LMIA application can be submitted only
after the four week recruitment period concludes. That is, although
the LMIA process may take longer than four weeks, an employer
cannot launch an application, expecting the recruitment to be
concluded and provided to Service Canada before the application is
Ads for LMIA purposes must post wages. The internal directives
indicate that the wages can be posted as a range, but the low end
of the range must meet the prevailing wage, that would ordinarily
be the minimum salary possible for the position in that
ESDC dictates that recruitment for LMIA applications needs to
be carried out on the applicable national or provincial job bank,
plus two additional methods. Examples of the two additional methods
are given, such as general employment web sites, specialized web
sites for specific industries, social media web sites, etc. What is
not made public, however, is that each of the two additional
methods must be a different type of recruitment.
That is, only one of the two postings can be to a general
employment web site (i.e. you can't use both Monster AND
Workopolis to satisfy the requirement for two postings), only one
of the two posting can be to a social media site (i.e. you
can't use both LinkedIn AND Twitter to satisfy the requirements
for two postings), etc. Certainly, this would not be obvious from
the government's publicly-provided information.
The employer must post all mandatory information directly in
the advertisement. A link to the information is not
The requirement to target underrepresented groups
may be satisfied through the use of web sites such
as Kijiji, however, the ads must be explicit that underrepresented
groups are encouraged to apply.
There may be occasional leniency in allowing
an employer not to disclose certain information in an ad (e.g.
salary, company name). This may occur, for example, in high profile
occupations (e.g. senior executive), or for competitive reasons.
ESDC (via Service Canada) may allow this, if the
employer can demonstrate that the advertised position should be
exempt from including any of the listed mandatory job advertisement
information. Recognize, however, that an employer seeking an LMIA
will not know if this position has been accepted until the
application is adjudicated.
Specific geographic regions may still have leniency in waiving
recruitment requirements, but this is not fully articulated. If the
prior LMO regime is to be instructive in this regard, consideration
could be given to waive the recruitment requirements when the
following are present: (a) a high salary (e.g. $200,000/year), (2)
very high skilled (e.g. NOC 00), (3) specialized nature of the
position (e.g. international knowledge); and (4) recruitment
efforts will not likely result in finding the expertise being
sought. Yet again, the employer will not know if the position in
the LMIA application is accepted until the application is
Head-hunters can be considered as one of the additional methods
of recruitment, but the employer must demonstrate that the
head-hunter meets the requirements otherwise set out, by providing
proof of its efforts. As well, the advertisements must state
the employer's name and for job advertisements where a CRA
business number is required by the employer's business
'Spin Off' advertisement does not
constitute an appropriate method of recruitment. That is, the
employer must post the ad, and cannot rely on a
web site which has automatically uploaded information from the
original posting. As such, if an ad appears on Monster because
Monster automatically reposted it from an industry-specific web
site, the Monster ad does not count. (The Monster ad would count if
the employer itself posted the ad on Monster).
Actions to Take:
Changes to the TFWP are continuing. Employers must ensure that
they are constantly updating their knowledge base vis-à-vis
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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